1998 PLP 1665 (MLD)

7. The trial Court after the remand dismissed the suit of the respondent to the extent of share of Taj Muhammad/defendant No. 1 (in the original suit) and granted a decree to the respondent to the extent of the share of the petitioner (Muhammad Rafique) by its judgment recorded on 18-3-1991.

8. The validity/legality of the said judgment/decree was not challenged before the appellant Court and as such it attained finality.

9. During the pendency of the appeal/revision the petitioner filed an application, on 12-2-1984, for setting aside of the ex parte decree passed against him on 28-1-1984. The said application was vehemently contested by the respondent and the trial Court, by its order dated 21-4-1994, dismissed the said application. Petitioner's appeal against the said order was dismissed by the Addl: District Judge, Haripur, Vide, his order dated 2-6-1996. Hence this revision petition under section 115, C.P.C.

10. Mr. Obaidur Rehman, Advocate, learned counsel for the petitioner present and heard at length. Record of the case perused carefully.

11. The learned counsel for the petitioner contended that since the petitioner was residing at Karachi, therefore, he could not be served properly and had no knowledge about the ex parte proceedings initiated against him. He further contended that the respondent had not furnished his correct address to the trial Court and thus succeeded in getting an ex parte decree by practising fraud. He, therefore, prayed that the revision petition be accepted and the orders of the two Courts below be set aside.

12. It may, be stated at the very out-set that the contention of the petitioner is absolutely incorrect. There is nothing on the file to suggest, even remotely that the respondent had not furnished the address of- the petitioner who was residing at Karachi. A perusal of the original suit would show that the respondent had in fact given the address of the petitioner as has given by the petitioner himself in his power of attorney Exhs. P.W. 1/1. It is the same address which finds mentioned in the publication. published in the daily "Nawa-i-Waqt", Rawalpindi. When this fact was brought to the notice of the learned counsel for the petitioner, he was unable to come out with any plausible explanation or to say anything 'in support of his contention that the address of the petitioner, as given by the respondent, was in fact wrong/incorrect.

13. I have not been able to understand as to how the petitioner who was allegedly residing at Karachi and was not reading at the address given in the "power of attorney" executed by him in favour of his counsel, that how did he come to know about the ex parte decree passed against him immediately which prompted him to come from Karachi on the very next day and to submit application for obtaining the certified copy of the ex parte judgment/decree.

14. In the circumstances, I am of the view that the petitioner had full knowledge of the ex parte decree and he purposely failed to get the same set aside well within time. His petition for setting aside the ex parte decree was definitely barred by time and was rightly rejected by the trial Court. Similarly the Additional Sessions Judge was justified in dismissing his appeal by his detailed and well-reasoned judgment recorded on 2-6-1996.

15. Admittedly, an ex parte decree can be set aside by resorting to one of the following remedies:-- (1) By filing application for setting aside the ex parte decree; (2) By filing a review petition before the Trial Court to review its order vide which ex parte decree was passed and (3) By filing an appeal against the order vide which the ex parte decree was granted.

16. It may be remarked that two remedies cannot be resorted to at the same time. If a person resorts to one of the remedies available to him, mentioned above, then in that case he cannot resort to the other remedies at the same time.

17. The petitioner, in this case, has availed two remedies at the same time. In the first instance, he filed an application for setting aside the ex parte decree and secondly, by filing an appeal against the ex parte in the Court of the Additional District Judge. The appeal of the petitioner was, however, dismissed. Thereafter, he failed to challenge its legality by filing a revision petition in this Court. Later, the case was remanded by the High Court Vide: its order dated 19-5-1990 in Review Petition No. 12 of 1989, for the reasons which are reproduced as under:-- "During the arguments both the learned counsel agreed that the following additional issue be framed in the case:-- ' Whether the sale brought about through the impugned sale-deed dated 17-5-1978 is one sale for the purpose of allowing the benefit of exemption to the vendee-defendant under section 5 (c) of the N. W.F.P.. Pre-emption Act, 1950. ?" They also concurred that the case be remanded to the trial Court for decision on this additional issue as well as issue No.3, who would allow the parties to lead evidence on these two issues and would, therefore, decide the said two issues afresh in the light of the evidence on record. It was also agreed that the decision of both the learned Courts on the remaining issues would hold goods and remain intact.

2. In view of the consensus of the learned counsel for the parties this revision petition is accepted, the judgment and decree of both the learned Courts are set aside and the case is remanded to the trial Court for decision afresh on issue No.3 and the additional issue after allowing the parties an opportunity to lead evidence. There would be no order as to costs. (Sd.) Abdur Rehman Khan, Judge.

18. After the remand the trial Judge dismissed the suit of the respondent to the extent of share of Taj Muhammad and left the decree intact with regard to the share of the petitioner. The petitioner once again remained silent and did not challenge the same. Accordingly the same has attained finality.

19. The petitioner had no right to avail two remedies at the same time. The said judgment of the Trial Court holds the field and would bar an application for the setting aside of the ex parte decree.

20. It will not be out of place to mention here that the Hon'ble Judges of the Supreme Court of Pakistan in case Muhammad Chitaghuddin Bhatti. v. The Province of West Pakistan and two others as reported ' in 1971 Supreme Court (M.R.) 447 held that a Civil Court could not by-pass/override the orders of the High Court, competently made in another jurisdiction, on the same subject and between the same parties.

21. This revision petition for reasons stated above, is without any substance and is accordingly dismissed in limine alongwith the Civil Miscellaneous. H.B.T./78-P Revision petition dismissed.